The European Court of Justice has held that a ban on headscarves did not amount to direct discrimination but a ban on headscarves may constitute indirect discrimination.

ban on headscarves

When the employee, in this case, commenced her employment there was an unwritten rule within company that workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace.

After three years of working with the company she informed her line managers that she intended, in future, to wear an Islamic headscarf during working hours. In response, the company’s management informed her that the wearing of a headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to it’s position of neutrality. After a period of absence from work due to sickness, the employee notified her employer that on her return to work she was going to wear the Islamic headscarf. The employee was dismissed on account of her continuing insistence that she wished, as a Muslim, to wear the Islamic headscarf at work.

She then brought a claim for direct discrimination, which the court dismissed. It was common ground that the employee was dismissed not because of her Muslim faith but because she persisted in wishing to manifest that faith, visibly, during working hours, by wearing an Islamic headscarf.

The court said that the ban on wearing visible signs of their political, philosophical or religious beliefs in the workplace was of general scope in that it prohibited all workers from wearing visible signs of political, philosophical or religious beliefs in the workplace. There was, the court said, nothing to suggest that the employer had taken a more conciliatory approach towards any other employee in a comparable situation, in particular as regards a worker with different religious or philosophical beliefs who consistently refused to comply with the ban.

The employee appealed and the appeal court referred the matter to the European Court of Justice for a preliminary ruling. The European Court of Justice was asked to clarify whether the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace.

Ban on headscarves did not amount to direct discrimination

The Court ruled that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief.

Ban on headscarves may amount to indirect discrimination

However, it went on to say that such an internal rule of a private undertaking may constitute indirect discrimination if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim.

The Court said that the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality must be considered to be a legitimate aim. An employer’s wish to project an image of neutrality towards customers, it said, relates to the freedom to conduct a business and is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers.

It will be for the referring court to now ascertain whether the means of achieving that aim are appropriate and necessary.

The Court said that the referring court should consider:

  • Whether the internal rule which prohibited workers from visibly wearing signs of political, philosophical or religious beliefs for the purpose of ensuring that a policy of neutrality is properly applied and genuinely pursued in a consistent and systematic manner.
  • Whether the prohibition is limited to what is strictly necessary. The Court said that what must be ascertained is whether the prohibition on the visible wearing of any sign or clothing capable of being associated with a religious faith or a political or philosophical belief covers only the employer’s workers who interact with customers. If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued.
  • Whether, taking into account the inherent constraints to which the undertaking is subject, and without the employer being required to take on an additional burden, it would have been possible for the employer to offer her a post not involving any visual contact with customers, instead of dismissing her.

 

Case reference: Achbita v G4S Secure Solutions NV